Jocelyn Stacey

It has been five years since British Columbia passed the Environmental Assessment Act, 2018 (EAA). The EAA was passed amid provincial representations that it would help bring the principles of the United Nation’s Declaration on the Rights of Indigenous Peoples into effect through British Columbia’s environmental assessment process. In this thesis, I investigate to what extent this is the case.To do so, I outline a series of interpretive frameworks for three of the United Nations Declaration’s core concepts, and apply those interpretive frameworks to the EAA to see which interpretations the Act most embodies. I begin the thesis by introducing the history of environmental assessment, and outlining its procedures, its intersection with Aboriginal and Constitutional law in Canada, and the EAA’s reform process. In the second chapter, I outline different interpretive frameworks relating to the United Nations Declaration’s concepts of self-determination, Free, Prior and Informed Consent, and Indigenous territorial and resource control. For each of these concepts, I present a conservative and expansive interpretation, drawn from Canadian and First Nation’s scholarship, jurisprudence, and government writings. In the third chapter, I apply these frameworks to the EAA, and find that generally the Act’s provisions and attendant policy guidelines espouse a conservative interpretation of the Declaration. While expansive interpretations of the Declaration are possible through, for example, the EAA’s consent agreement, and Indigenous Led Impact Assessment regimes, these things are exceptions under the EAA’s general framework, rather than the rule. Finally, in the fourth chapter I demonstrate an expansive reading of the EAA through applying an expansive interpretive framework to the EAA’s dispute resolution provisions.Ultimately, I encourage further critique of attempts to legislate the United Nations Declaration. How the Declaration is represented by legislatures and in policy guidelines critically affects how its implementation plays out in practice. It matters how jurisdictions like British Columbia or Canada implement the Declaration, and whose understandings of it become most embodied in the resulting domestic legal framework.

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This thesis examines regulatory capture, a phenomenon that occurs when a regulator subverts their mandate from representing the public interest, to representing the interests of the industry that they regulate. Diagnosing and preventing capture is challenging as the process of capture often occurs in areas of governance where it is not illegal, and frequently overlaps with other legitimate stakeholder engagement. Canadian environmental law is an area where regulatory capture is a significant risk due to the extensive influence of resource extraction industries, and conservation efforts may be undermined due to growth of those industries being within the legislative mandates of environmental regulators. The 2014 Mount Polley mining disaster in BC Canada was a situation where the capture of a regulator was linked with lapses in inspection, compliance, and enforcement standards, resulting in Canada’s worst environmental disaster to date.I chose to reconcile the regulatory capture literature by compiling a list of common indicia that may be considered when assessing if a regulatory body is captured or is vulnerable and at-risk of capture. The Mount Polley disaster and the audit that followed it are used to exemplify what these indicia look like before, during, and after environmental harm caused by capture. This is followed by a critical analysis of the economic theories that eventuated in the concept of capture, such as public choice theory. I contrast how regulatory capture literature has diverged from these theories over the past 60 years, specifically the question of whether capture is a risk or an inevitability. Focusing on the indicia of ‘bias in decision-making’ reveals that even within otherwise robust legal frameworks – specifically, the reasonable apprehension of bias test - the public interest and impartial decision-making can still be affected by the influence and pressure of industry. Throughout this analysis is the recurring problem that capture affects regulators at an institutional level, and that prevention and mitigation is critical.

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This thesis highlights the multiple forms of injustice that are experienced in the Niger Delta using the concept of environmental justice. It discusses prominent cases such as Gbemre v. Shell and Bodo v. Shell and identifies judicial independence as a crucial component of attaining justice for Niger Deltans. Using the branches of environmental justice, it explains the risks and harms that have occurred within this region and the kinds of remedies that are required for an improvement. In particular, it reveals disproportionate arrangements in the shares of benefits and burdens of the environmental resources in the country and highlights several social and political arrangements which promote these disparities. The thesis further highlights the need for a remedy and the reasons why these remedies have been far-fetched and this leads to the discussion about the best ways to achieve these remedies.In considering the best ways forward from the environmental injustice, this thesis discusses the topic of judicial independence, which it highlights as a crucial factor for the attainment of environmental justice. It views this as a plug to a drain, which ensures that the good efforts which are made towards the attainment of environmental justice, in the form of reformed laws and better processes amongst others, do not go to waste. Conversely, it argues that the lack of judicial independence undoes any good efforts and frustrates the attempts of the Niger Deltans to attain environmental justice.An independent, impartial and competent court is therefore shown to be an essential requirement, if environmental justice is to be achieved and sustained in the Niger Delta.

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Climate Change has been described as the greatest human rights issue of our time. As communities around the world struggle to adapt to life in a warming world, a growing movement has started to call for those who have contributed most to the climate problem – a small handful of major fossil fuel and cement companies now known as the Carbon Majors – to be held responsible for their “fair share” of the costs of climate adaptation. This movement has already resulted in litigation being brought against fossil fuel producers in common law courts. To date, these actions have been unsuccessful. However, I argue that the new norms around corporate responsibility contained in the UN Guiding Principles on Business and Human Rights (UNGPs) could help plaintiffs to change that outcome.Relying on rights-based theories of tort law, I argue that the norms in the UNGPs could help plaintiffs to establish the existence of a duty of care on the part of the Carbon Majors. After reviewing close to 200 corporate documents and statements, I conclude that the Carbon Majors’ public statements suggest a widespread acceptance of the responsibility to respect human rights contained in the UNGPs, and a widespread acceptance of the serious risks posed by climate change. A number of recent cases have seen common law courts demonstrate a new willingness to hold corporate actors accountable to the standards they claim to uphold in their corporate social responsibility reports. Relying on these recent precedents, plaintiffs could rely on the evidence reviewed for this thesis to establish that Carbon Majors have assumed a responsibility to prevent, mitigate, or remediate impacts to their human rights caused by climate change.

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